Your deposition has been noticed. There’s no way out of it. Outside counsel has done everything possible to protect you, but your deposition is unavoidable. Now what?
This article examines the psychological effect on in-house counsel who are thrust into the witness chair, as well as the interpersonal dynamics that develop between in-house and outside counsel. By better understanding the power shift and emotions at play, in-house counsel can successfully navigate the deposition with reputation, relationships and sanity intact.
Understanding litigation stress syndrome and spectating
The psychological dynamic that occurs when a person is thrust into a lawsuit is known as litigation stress syndrome. It is characterized by self-doubt, fear, anxiety, anger, helplessness, and unrealistic expectations. These feelings are exacerbated and acute when the lawsuit’s allegations focus negatively on in-house counsel’s advice and counsel or work product. They take a toll on the attorney’s personal and professional life. Relationships with family, friends, colleagues and staff may fray. Job performance and quality of life may suffer. In-house counsel may feel a loss of control over all aspects of being.
Self-doubt manifests itself when inside counsel begins to question their legal advice or where their work product has somehow resulted in the litigation, causing the attorney to find flaws or bear fault even if the allegations are meritless. Fear and anxiety surface when in-house counsel senses that their personal and professional reputation, and maybe even job, is at stake because of the litigation, particularly where the real or imagined threat of institutional harm is great. Anger can be directed at a variety of sources, including opposing counsel, outside counsel who “failed” to protect against the deposition, the judge that allowed it or others within the corporation or legal department who in-house counsel believes is responsible for the present predicament. These emotions are heightened when in-house counsel feels helpless or takes on unrealistic expectations, such as a belief that they can win or lose the case through their deposition.
It is important that inside counsel understand the factors that increase the deposition’s emotional impact, starting with role reversal and ambiguity. In-house counsel is accustomed to calling the shots, and outside counsel typically accepts this power dynamic and responds accordingly. But when in-house counsel’s deposition is noticed, these traditional roles take on ambiguity and, in some circumstances, are reversed. What had been a team with defined roles and expectations breaks down and transforms, diminishing its clarity and function. Outside counsel, in preparing for the deposition, must challenge in-house counsel, ask the tough questions, point out weaknesses, and perhaps even criticize in-house counsel’s style, position, thought processes or actions. This transformation of duties and responsibilities is obviously fraught, particularly where the stakes are high — personally, professionally and institutionally — for all involved.
During the deposition itself, in-house counsel will likely experience the concept of “spectating,” counsel’s tendency to watch and analyze the deposition as it transpires. Spectating occurs when in-house counsel refuses, or is simply unable, to take off the lawyer’s hat and focus exclusively on providing responsive and succinct answers. Spectating is detrimental to a successful deposition, whether it’s stifling the desire to object, becoming overly concerned with trickery, analyzing how answers might affect the company’s theories or outcome of the case, or becoming preoccupied by and attempting to correct outside counsel’s perceived mistakes.
Successfully navigating the situation
How does in-house counsel successfully manage litigation stress syndrome and spectating?
First, accept the inevitability of being a target of the litigation. Prepare for a prolonged and tiring ordeal by engaging in the process while maintaining a work-life balance. Focus on building resilience through self-care and self-awareness to counter stress.
Second, build a seamless team early in the process and redefine the team as necessary, setting clear roles and responsibilities. This starts with appropriately pairing counsel. Outside counsel must have the respect of in-house counsel to be effective, and outside counsel must have both the experience and confidence to appropriately manage the relationship. This is particularly true during the deposition itself, when inside counsel must focus solely on the role of witness. A less-experienced attorney is not likely prepared to handle this power dynamic and will only increase in-house counsel’s anxieties and challenges.
Third, promote open and transparent communications. Discuss the emotional toll of the deposition, and the fact that these emotions are common and to be expected. Talk about the need for in-house counsel to relinquish the lead role to outside counsel for all deposition purposes, and the need for outside counsel to accept the lead. Define clear roles, expectations, duties and responsibilities for all team members. Explore the problem of spectating and the best ways to prevent or alleviate it.
Fourth, in-house counsel should allow outside counsel to determine and accept the amount and manner of deposition preparation. Do not let pride or other commitments prevent the acquisition of key deposition skills. Be willing to block out significant portions of time, to leave your office and its distractions behind, and to turn off the smartphone once the session begins. Be willing to meet well in advance of the deposition so that there is sufficient time for any required follow-up. And then be willing to meet again on the eve of the deposition, and to listen and take to heart the repetitive advice of your outside counsel. Be candid about any personal, professional or emotional issues that could negatively impact your ability to adequately testify.
Finally, in-house counsel must welcome constructive feedback during the deposition and gracefully accept a “woodshedding” if necessary. Outside counsel is in the best position to determine whether the deponent has become defensive, argumentative, non-responsive, reactive, hostile, grandiose, withdrawn, or yielding. In-house counsel must empower outside counsel to call out these behaviors with blunt honesty and assure that they will not be penalized for doing so.
Although in-house counsel will rarely relish being deposed, a keen understanding and acceptance of the emotional and psychological dynamics at play is critical to successfully weathering the experience. Go forth. Conquer.
Bradley J. Betlach is a shareholder of the Minneapolis law firm, Nilan Johnson Lewis PA. He primarily defends insurance companies in litigation involving life, health and disability claims, including those alleging violations of ERISA and bad faith.